Navi Pillay’s selective defence of civil society

[Distributed in English and in Khmer translation by the government’s Press and Quick Reaction Unit in early May 2012.]

Most people in the world probably haven’t noticed it, but Navi Pillay, the United Nations High Commissioner for Human Rights, raised the alarm about an international campaign to curtail human rights and non-government organisations. A 25 April press release from the UN News Service quoting her worries was headlined, “Restrictions on NGOs worldwide undermining human rights, says UN senior official”.

When it comes to specifics, however, things seem not quite so alarming. The alleged “restrictions” are not really “worldwide”, but, according to the press release, involve just six countries: Algeria, Egypt, Zimbabwe, Cambodia, Israel and Venezuela. I don’t know anything about the situation of NGOs in Algeria, Egypt, Zimbabwe or Israel. But I do know a little about them in Cambodia and Venezuela, and that knowledge makes Ms. Pillay’s comments seem more than a little misleading.

I agree with Ms. Pillay that a “dynamic and autonomous civil society” is desirable, and that it is also desirable “that NGOs are able to function properly”. However, that begs the question of what “proper functioning” of NGOs consists of. Ms. Pillay and the UN News Service seem to operate on the assumption that any NGO is whatever it says it is, and therefore there is no need to distinguish between good NGO behaviour and bad NGO behaviour; all NGOs are inherently necessary to a healthy civil society. This is rather simplistic.

In Cambodia there are something like 3000 NGOs. Some of them carry out very worthwhile civic projects with full transparency and accounting for funds received and expended. Others seem to focus their poverty reduction efforts on the NGO’s officers and friends, and have financial records that are murky at best. Still others act more like an opposition political party, offering comments and criticisms on many different aspects of government action and policy (at least one “human rights” NGO later transformed itself into a political party). Some or most have traditionally, or by regulation, been exempted from various taxes, a fact that gives them an advantage if they engage in activities that compete with private business. And some, regardless of whether they are involved in commercial activities, are not really NGOs at all, because they are directly or indirectly government-funded: their funds come from foreign governments.

How many of the 3000 NGOs fall into any category is anyone’s guess. There is no way at present for anyone to know how many nominal NGOs are actually businesses in disguise. This is one thing that would be dealt with by the draft NGO law, on which the government has been working for almost nine years. In its latest, fourth, draft, the law says that NGOs cannot conduct “activity to generate profits for sharing among their members”.

The UN press release does not inform readers that only a minority of Cambodian NGOs have vocally opposed the idea of having any legislation whatsoever to regulate NGOs. Ironically, these are often the same NGOs that preach to the government and society about the importance of “the rule of law”; their first rule is that they should be above the law.

Ms. Pillay also did not mention that the government has done its utmost to accommodate legitimate concerns of NGOs, which is one of the reasons the law is now in its fourth draft. Nor did she show any awareness of the widely reported remarks last December by Prime Minister Hun Sen, when he said that the government is prepared to continue consulting with NGOs until 2014 if necessary in order to work out a mutually acceptable draft law. If this is part of an international campaign, it is an exceedingly lackadaisical one.

In fact, the UN press release quotes Ms. Pillay as mentioning only one specific about the Cambodian draft law —and that remark is seriously misleading. The release says that the draft law “would allow the Government to close down NGOs if their activities are deemed to harm national unity, culture and customs without giving them the right to appeal”.

The press release misrepresents the draft law in at least three ways. First, Article 17, the only part of the law on which the press release could be based, does not apply to NGOs in general, but only to international NGOs.

Second, the law does not allow the government to “close down NGOs”; the idea that the Cambodian government could close down an international NGO is absurd on the face of it. What the draft law says is that the government may cancel its memorandum of understanding with an international NGO if the latter’s activities “jeopardize peace, stability and public order or harm the national security, national unity, culture, customs and traditions” of Cambodia. Ms. Pillay ought to be familiar with this content, since it comes from her office’s unofficial translation of the draft law.

Third, the law neither grants nor denies judicial appeal against cancellation of an MoU. It could not do so because MoUs are a broad category of agreements that can be quite varied in their legal status. Whether or not an MoU is enforceable in national and/or international courts depends on its subject and what the MoU itself says.

According to the UN press release, Ms. Pillay also criticised the Venezuelan Congress for passing a law that “imposes restrictions on foreign funding” of NGOs. This is not directly relevant to the Cambodian draft law, which does not contain such a restriction, but it is worth mentioning for what it shows about Ms. Pillay’s inability to see anything more than the label an NGO places on itself.

In Venezuela, foreign-funded NGOs aided and participated in the April 2002 coup that overthrew the elected President Hugo Chavez, before a popular uprising restored him to office. Moreover, after the failed coup, the so-called National Endowment for Democracy (funded by the US government) continued supplying funds to NGO coup supporters for their later unsuccessful campaign to recall Chavez from office. To cite just one of many examples from a lengthy article in the 13 August 2004 Los Angeles Times:

“The NED also has given money to a conservative think tank known as CEDICE to help it draft ‘a viable [opposition] agenda.’ Rocío Guijarro, the group’s general manager, signed the coup decree that abolished Venezuela’s Constitution, Supreme Court and National Assembly. Several members of CEDICE’s project advisory committee attended [coup ‘president’] Carmona’s swearing-in.”

Anyone, including NGOs, in the United States who accepted Venezuelan or other foreign funds in order to organise a campaign to impeach the US president (let alone to carry out a coup) would be jailed immediately for failure to register as a “foreign agent”. Strangely, however, Ms. Pillay does not cite this longstanding US law as an example of “worldwide undermining” of NGOs and human rights. Could it be that the UN human rights representative is operating on a double standard?